Devendra Singh vs Surajmal Memorial Education ...
2019 Latest Caselaw 150 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RFA No. 9/2014

%                                                    10th January, 2019

DEVENDRA SINGH
                                                          ..... Appellant
                          Through:       Mr. P. Vinay Kumar, Advocate
                                         with    Mr.   B.K.      Mishra,
                                         Advocate (M. No.9818020554).
                          versus

SURAJMAL MEMORIAL EDUCATION SOCIETY (REGD.)
                                       ..... Respondent

Through: Mr. Naresh Kaushik, Advocate with Mr. Omang Gupta, Advocate (M. No.9050620685).

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 30.10.2013 by which

the trial court has only partially decreed the suit filed by the

appellant/plaintiff, granting the appellant/plaintiff leave encashment

amount for 137 days, but has dismissed the suit whereby the

appellant/plaintiff claimed the relief of financial benefits by taking the

appellant/plaintiff to have retired at the age of 62 years and not at 60

years as was taken and done by the respondent/defendant/employer.

2. The facts of the case are that the appellant/plaintiff was

originally appointed to Maharaja Surajmal Institute of Pharmacy and

Technology (hereinafter „M.S.I.P&T‟) by the respondent/defendant.

M.S.I.P&T was a polytechnic institution running diploma courses.

The diploma courses could not continue and therefore the

respondent/defendant started a B.Tech. Degree course in the year 2001

and set up Maharaja Surajmal Institute of Technology (hereinafter

M.S.I.T). BM.S.I.P&T and M.S.I.T, are separate educational

institutions. Both, M.S.I.P&T and M.S.I.T, are private educational

institutions and they do not receive any funding from the government.

The appellant/plaintiff was appointed as a Principal in M.S.I.P&T, and

when this institute stopped functioning as regards diploma courses, the

appellant/plaintiff was appointed by the respondent/defendant as a

Director in M.S.I.T. However, for being appointed as a Director of

M.S.I.T as per the All India Council for Technical Education

(hereinafter AICTE) Rules and Regulations, a person had to have a

qualification of Ph.D. but the appellant/plaintiff did not have this

qualification. Accordingly, the respondent/defendant was informed by

the AICTE vide its Letter dated 30.12.2005 that the appellant/plaintiff

cannot be appointed or allowed to continue on the post of the Director

of M.S.I.T. From 30.12.2005 till the year 2006, the respondent/

defendant tried its best to convince AICTE to allow the

appellant/plaintiff to continue as the Director of the M.S.I.T., however

the AICTE ultimately refused and in fact there was an impending

threat of de-recognition of the M.S.I.T institute on account of the

appellant/plaintiff continuing as the Director of M.S.I.T, and therefore,

the respondent/defendant issued the Letter of Termination dated

30.03.2006 to the appellant/plaintiff. In this letter, the

appellant/plaintiff besides being informed of his termination from the

post of Director of M.S.I.T, was also informed that though the services

were terminated with immediate effect i.e. 30.03.2006, the

appellant/plaintiff will continue to get remuneration till the date of his

retirement of 60 years i.e. till 31.01.2007. The appellant/plaintiff was

thereafter offered the post of Reader by the respondent vide Letter

dated 03.11.2006/Ex.PW1/8 but this appointment was refused by the

appellant/plaintiff. The appellant/plaintiff claims to have refused this

post because the respondent/defendant had issued the

appellant/plaintiff memorandums with respect to financial mis-

management when the appellant/plaintiff was working as Principal of

M.S.I.P&T. The appellant/plaintiff, therefore, filed the subject suit

pleading that as a Director he would have continued in the post till the

age of 62 years, and therefore the appellant/plaintiff be granted benefit

of the financial package till the age of 62 years and not up to 60 years,

as was written in the Termination of Service Letter dated

30.03.2006/Ex.PW1/4.

3. The main defence of the respondent/defendant was that

the appellant/plaintiff was ineligible for being appointed as a Director

of the respondent/defendant/M.S.I.T, as the appellant/plaintiff lacked

the qualification of Ph.D., hence the appellant/plaintiff cannot get

benefit of the financial package for the post of Director which was up

to the age of 62 years. Further, the appellant/plaintiff otherwise also

cannot get financial package for the post of a Reader of M.S.I.T till the

age of 62 years inasmuch as the offer given by the

respondent/defendant for appointment of the appellant/plaintiff as a

Reader in M.S.I.T vide Ex. PW1/8 dated 03.11.2006 but this was

rejected by the appellant/plaintiff vide his letter dated

15.11.2006/Ex.PW1/19.

4. The following issues were framed in the suit:

"(i) Whether plaintiff is entitled to a decree for the suit amount alongwith pendentelite and future interest @ 18% per annum? OPP.

(ii) Whether plaintiff is entitled to the decree of mandatory injunction directing the defendant to issue an experience certificate to him? OPP.

(iii) Whether suit is bad for non joinder of the necessary parties? OPD.

(iv) Relief."

5. The issue to be considered by this Court is as to whether

the appellant/plaintiff can get financial package of a Director or a

Reader till the age of 62 years, although in the Termination Letter,

benefit is given to the appellant/plaintiff of a financial package till the

age of 60 years, and whether the age of 60 years written in the Letter

dated 30.03.2006 must be read instead as 62 years.

6. In my opinion, the trial court has very exhaustively and

thoroughly dealt with these facts and issues from paras 43 to 55 of the

impugned judgment and thereafter has given the reasoning and

conclusions in paras 56 to 61 of the impugned judgment holding that

since, admittedly, the appellant/plaintiff was required to have

qualification of Ph.D. as per AICTE Regulations and since,

admittedly, appellant/plaintiff did not have the Ph.D. qualification,

hence the respondent/defendant was justified in terminating the

services of the appellant/plaintiff as the Director of M.S.I.T.. Also,

the trial court has held that the appellant/plaintiff cannot get the

benefit of the post of the Reader because such offer given by the

respondent/defendant vide its Letter Ex.PW1/8 in this regard was

rejected by the appellant/plaintiff vide his Letter dated

15.11.2006/Ex.PW1/19. Paras 56 to 61 of the impugned judgment

read as under:

"56. From the evidence of both the parties, it is clear that the plaintiff was not qualified to be appointed as a Director of the defendant institute, as his name was not approved by AICTE/GGIPS university, as the plaintiff did not had the requisite qualifications to be appointed to the post of Director of a Degree College and it is also evident from the testimonies of both the parties that the terms and conditions of conditions of AICTE/GGIPS university were automatically applicable to the employees of the institute. Since the name of the plaintiff was never approved for the post of Director by the AICTE, therefore the plaintiff could have continued in the services of the defendant institute till the age of 62 years not as director, but in some other capacity in the teaching staff or other equivalent capacity, as per the educational qualification of the plaintiff. It is

the admitted case of the plaintiff that he was offered the post of Reader vide letter Ex-PW1/8 and it was also offered in the said letter that his last drawn pay shall be protected till the age of 62 years, which the plaintiff declined, as he was apprehending that some departmental inquiry and other proceedings may be initiated against him, therefore he never wanted to work under his subordinates. In these circumstances, since the name of the plaintiff was never approved for the post of Director as per AICTE/GGIPSU norms. The plaintiff could have only continued in the post of Director/Principal/Head of Institute of the defendant till the age of 62 years, if his name would have been approved by AICTE/GGIPSU to which the defendant institute was affiliated for running the B.Tech degree courses. The only way in which the plaintiff could have continued to work till the age of 62 years was in some other capacity for which he was also offered an assignment vide letter Ex-PW1/8 and he declined vide his reply Ex-PW1/9. The plaintiff has claimed that he was entitled to some equivalent post to which he was working. The plaintiff cannot direct the defendant institute that he should be given a particular post in the defendant society. The plaintiff has only right to be considered for a particular equivalent post and it is the sole discretion of the defendant society, whether the request of the plaintiff to be accommodated in a particular post is considered appropriate by the defendant institute taking into account the educational qualification(s) of the plaintiff or not.

57. In the present case looking into the educational qualifications of the plaintiff being a non PhD candidate, which he was possessing at the time of his dispensation of services, he was offered the post of Reader which was a teaching post which the plaintiff has also admitted in his cross examination and in this way he would have continued to work till the age of 62 years and his last drawn pay was also to be protected vide letter of assignment Ex-PW1/8, but he did not accept the same. Therefore since the plaintiff was offered an alternative post, as per his qualifications, which was a teaching post i.e the post of Reader which he declined, therefore he is not entitled to get pay, as claimed in the present suit without working till the age of 62 years and all other consequential benefits as prayed.

58. Regarding the claim of the plaintiff that he is entitled to the gratuity, which has to be calculated till the age of 62 years on the last drawn emoluments of Rs. 45201/-, which was being paid at the time of dispensation of his services. The said contention of the plaintiff is also without any substance. The

gratuity has to be calculated as per Rule 3 cited by himself by the plaintiff Ex-PW1/5, which reads as under:

"For the purpose of determining the amount of Gratuity under this rule "emoluments" shall mean basic pay which an employee was receiving immediately at the time of relinquishment of service or on the date of his death, as the case may be, including dearness pay, if any, but it will not include special pay, personal pay and other emoluments as pay."

59. As per the said rule "emoluments" means basic pay which an employee was receiving immediately at the time of relinquishment of service or on the date of his death, as the case may be, including dearness pay, if any, but it will not include special pay, personal pay and other emoluments. Therefore the claim of the plaintiff that the gratuity was to be calculated as per last drawn salary of Rs. 45,201/- is not correct.

60. Regarding the claim of the plaintiff that he is entitled to the difference in pay from 01.07.00 to 30.03.06 to the pay scale for the post of Director for the above period. Since he actually performed duties to the post of Director during the aforementioned period. Therefore he is entitled to the difference between the pay that would have been payable in the pay scale of Rs. 18,400-22,000 and actual pay paid to him in the pay scale of 16400-20000, which come to Rs. 3,14,909/-. As discussed above since the plaintiff was never qualified to be selected for the post of Director, as per his own averments mentioned in the plaint, therefore plaintiff was not entitled to the pay scale which was payable to a qualified person who was having necessary qualification to be appointed to the post of Director. Therefore the plaintiff is not entitled to the said amount of Rs. 3,14,909/-.

61. Regarding another claim of the plaintiff that plaintiff during the period of his employment with the defendant was given dual charge namely of Director MSIP & T and MSIT from 2001-2003 and that of MSIT and MSIP from 2003-2004 for which he was not paid any allowance, to which he is entitled @ Rs. 2000/- per month, total amounting to Rs. 72,000/-. The said claim of the plaintiff is also not maintainable, as the plaintiff has failed to produce any document on record that the defendant had given any assurance to the plaintiff to pay special allowances @ Rs. 2000/- per month for handling dual charge. In any case, even if the plaintiff was handling dual charge, as mentioned in para 8

even then the plaintiff is not entitled for any allowance @ Rs. 2000/-, as for administrative reasons the plaintiff may have been given the occasion to handle dual charge in different capacities, which is only an incident of service and it does not entitle the plaintiff to claim special allowance(s) for handling the dual charges, as claimed in the plaint."

(Underlining Added)

7. I completely agree with the discussion, reasoning and

conclusions of the trial court because the appellant/plaintiff could not

have continued in the post of the Director of M.S.I.T in the absence of

the necessary qualification of a Ph.D. Obviously the AICTE

Regulations are for ensuring/maintaining standards of education and

such AICTE Rules being final, once the appellant/plaintiff did not

have qualification of Ph.D., the appellant/plaintiff could not have

continued at the post of Director of the M.S.I.T and

respondent/defendant was completely justified in issuing the

Termination Letter Ex.PW1/4 dated 30.03.2006. In fact, it is noted

that the respondent/defendant has been more than generous because

actually not a single rupee, whether towards salary or any other

financial package need have been paid by the respondent/defendant to

the appellant/plaintiff from 30.03.2006 till superannuation age upto 60

years of the appellant/plaintiff till 30.01.2007, however the

appellant/plaintiff has without working at all from 30.03.2006 till

31.01.2007 received from the respondent/ defendant salary and the

commensurate financial package which he was having at the date of

termination on 30.03.2006, much later till 31.01.2007 and without the

appellant/plaintiff at all working from 01.04.2006 till 31.01.2007.

This ex gratia payment or payment as generosity by the

respondent/defendant cannot be extended till 31.01.2009 because even

payment till 31.01.2007 is purely as a generosity by the

respondent/defendant, well who could have stopped all payments to

the appellant/plaintiff once appellant/plaintiff had ceased as a Director

of M.S.I.T with effect from 30.03.2006 as the appellant/plaintiff did

not have the qualification of Ph.D. and the respondent/defendant was

clearly directed by AICTE for not continuing an unqualified person

such as the appellant/plaintiff in the post of Director. In my opinion

therefore appellant/plaintiff cannot contend that since there is an age

of retirement which is written as 60 years as per Letter dated

30.03.2006, but since the age of retirement of a Director as per rules is

62 years, the appellant/plaintiff will get the benefit of financial

package as a Director till 31.01.2009. As already stated above, the

appellant/plaintiff even cannot get the benefit of the post of Reader till

the age of 62 years because, admittedly, the offer of the

respondent/defendant for appointment of the appellant/plaintiff as a

Reader was rejected by the appellant/plaintiff.

8(i) Ld. Counsel for the appellant/plaintiff has placed reliance

upon the two judgments of the Hon‟ble Supreme Court in support of

his arguments. The first judgment is in the case of Kayastha

Pathshala, Allahabad and Another v. Rajendra Prasad and Another,

1989 Supp (2) SCC 732 and the second judgment is in the case of

Deepak Kumar Biswas v. Director of Public Instruction and Others,

(1987) 2 SCC 252.

8(ii). So far as the judgment in the case of Kayastha

Pathshala, Allahabad and Another (supra) is concerned, the same is

totally irrelevant in the facts of the present case because the said

judgment does not deal with the issue at hand and the said judgment

does not hold that even if a person is disqualified to be appointed or

continues in the post, yet such a person will get the financial package

of the post in which he was disqualified to be appointed, till the date

of retirement in that post.

(iii) So far as the judgment in the case of Dipak Kumar

Biswas (supra) is concerned, it is seen that the termination of the

employee was held to be illegal whereas in the present case

termination of the employee was not illegal but was in accordance

with the requirements of the AICTE Regulations. In any case, in the

said case the Hon'ble Supreme Court had exercised extraordinary

jurisdiction by applying its power under Article 136 of the

Constitution of India as stated in para 14 of the said judgment.

Therefore, the appellant/plaintiff cannot take the benefit of the

judgment in the case of Dipak Kumar Biswas (supra).

9. In view of the aforesaid discussion, I do not find any

merit in the appeal and the same is hereby dismissed.

JANUARY 10, 2019                           VALMIKI J. MEHTA, J
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